GATES v. NORTHLAND GROUP, INC. et al
OPINION. Signed by Judge Noel L. Hillman on 2/21/2017. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
On behalf of herself and all
others similarly situated,,
NORTHLAND GROUP, INC.,
ARI HILLEL MARCUS
MARCUS ZELMAN LLC
1500 ALLAIRE AVENUE
OCEAN, NJ 07712
On behalf of Plaintiff
AARON RAPHAEL EASLEY
SESSIONS, FISHMAN, NATHAN & ISRAEL, LLC
3 CROSS CREEK DRIVE
FLEMINGTON, NJ 08822-4938
On behalf of Defendant
HILLMAN, District Judge
Presently before the Court is the unopposed motion of
Defendant to dismiss, and compel arbitration of, Plaintiff’s
putative class action complaint, which alleges that Defendant
violated the Fair Debt Collection Practices Act (FDCPA), 15
U.S.C. § 1692 et seq.
For the reasons expressed below,
Defendant’s motion will be granted.
Plaintiff, Dollie Gates, alleges violations of the FDCPA
arising from the collection of her delinquent and outstanding
Citibank, N.A. (“Citibank”) credit card debt.
Northland Group, Inc. (“Northland”) is a collection agency,
collecting defaulted accounts owed to third parties.
In August 2015, Citibank assigned Plaintiff’s account to
Northland for collection purposes.
On August 11, 2015,
Northland sent Plaintiff a collection letter in an attempt to
collect on the delinquent account.
Plaintiff claims that
Northland’s collection efforts violated the FDCPA because it did
not make it clear whether the account was collecting interest.
Plaintiff has brought her claims as a putative class action
under Fed. R. Civ. P. 23 for all New Jersey consumers who were
sent the same or similar collection letter within one year to
the date of the filing of the complaint.
Defendant has moved to dismiss Plaintiff’s complaint and
compel arbitration of her claims on an individual basis, arguing
that the credit card agreement, which governs the relationship
between Plaintiff, Citibank, and Northland, contains an
arbitration provision and a class action waiver applicable to
Plaintiff has not opposed the motion. 1
When a plaintiff fails to file an opposition to a motion to
dismiss, the Court must still address the motion to dismiss on
Subject matter jurisdiction
The Court has jurisdiction over this matter under 28 U.S.C.
§ 1331, 15 U.S.C. § 1692 et seq., and 28 U.S.C. § 2201.
Standard for Motion to Dismiss
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
It is well
settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
liberal federal pleading rules, it is not necessary to plead
evidence, and it is not necessary to plead all the facts that
serve as a basis for the claim.
F.2d 434, 446 (3d Cir. 1977).
Bogosian v. Gulf Oil Corp., 562
However, “[a]lthough the Federal
Rules of Civil Procedure do not require a claimant to set forth
its merits. Ozerova v. United States, 2016 WL 6518439, at *2
(D.N.J. Nov. 2, 2016) (citing Stackhouse v. Mazurkiewicz, 951 F.
2d 29, 30 (3d Cir. 1991)) (other citation omitted) (“To decline
to analyze the merits of a motion to dismiss simply because it
is unopposed would be to impermissibly sanction plaintiffs for
their failure to respond.”).
an intricately detailed description of the asserted basis for
relief, they do require that the pleadings give defendant fair
notice of what the plaintiff’s claim is and the grounds upon
which it rests.”
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S.
147, 149-50 n.3 (1984) (quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks “‘not
whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claim.’”
Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft
v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly
expounded the pleading standard for ‘all civil actions’ . . .
.”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(“Iqbal . . . provides the final nail-in-the-coffin for the ‘no
set of facts’ standard that applied to federal complaints before
A court in reviewing a Rule 12(b)(6) motion must only
consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).
A court may consider,
however, “an undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff’s
claims are based on the document.”
Pension Benefit Guar. Corp.
v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
If any other matters outside the pleadings are presented
to the court, and the court does not exclude those matters, a
Rule 12(b)(6) motion will be treated as a summary judgment
motion pursuant to Rule 56.
Fed. R. Civ. P. 12(b).
The Federal Arbitration Act (FAA) provides that a written
arbitration provision contained in a “contract evidencing a
transaction involving commerce . . . shall be valid, irrevocable
and enforceable, save upon such grounds as exist at law or in
equity for the revocation of any contract.”
9 U.S.C. § 2.
Under the FAA, a private arbitration agreement is enforceable if
(1) a valid arbitration agreement exists between the parties and
(2) that the dispute before it falls within the scope of the
AT&T Mobility LLC v. Conception, 563 U.S. 333, 344–
45 (2011); Century Indem. Co. v. Certain Underwriters at
Lloyd's, London, 584 F.3d 513, 525 (3d Cir. 2009).
Additionally, arbitration agreements that contain waivers
of class actions are valid.
See AT&T Mobility LLC, 563 U.S. at
348; Kobren v. A-1 Limousine Inc., 2016 WL 6594075, at *4
(D.N.J. 2016) (explaining that “ neither individual claims nor
class arbitration waivers are unconscionable in the context of
consumer adhesion contracts, even when there is a clear
disparity of bargaining power and when only small monetary
amounts are at issue”) (citing Litman v. Cellco Partnership, 655
F.3d 225, 232 (3d Cir. 2011) (rejecting New Jersey law holding
that waivers of class arbitration are unconscionable)).
party resisting arbitration bears the burden of proving that the
claims at issue are unsuitable for arbitration.”
Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 91 (2000).
The arbitration provision contained in Plaintiff’s credit
card agreement 2 provides:
“all claims” relating to the account and the relationship
with Plaintiff are subject to arbitration, including claims
“regarding the application, enforceability, or
interpretation of this Agreement and this arbitration
provision” regardless of “what legal theory they are based
on or what remedy (damages, or injunctive or declaratory
relief) they seek,” including claims based upon “statutory
or regulatory provisions.”
all “Claims made by or against anyone connected with
[Citibank] . . . such as . . . an . . . agent,
representative . . . [or] assignee” are subject to
The Court may consider the credit card agreement, which
contains the arbitration provision, even though it was not
attached to the complaint because Plaintiff’s claims arise out
of her credit card contract. Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
any questions about “whether Claims are subject to
arbitration shall be resolved by interpreting [the]
arbitration provision [in the Card Agreement] in the
broadest way the law will allow it to be enforced.”
Citibank and “any assignee may seek arbitration on an
individual basis of any Claim asserted by you, whether in
arbitration or any proceeding, including in a proceeding to
collect a debt.”
all claims and remedies sought as part of a class action
“are subject to arbitration on an individual (non-class,
non-representative) basis, and the arbitrator may award
relief only on an individual (non-class, nonrepresentative) basis.”
the parties cannot “pursue the Claim in arbitration as a
(Docket No. 19-4.)
Plaintiff claims that Northland, as assignee of Citibank,
violated the FDCPA when it sent Plaintiff a collection letter
for her debt incurred to Citibank under their credit card
These claims fall squarely within the credit card
agreement’s arbitration provision.
Cf. Jeffreys v. Midland
Credit Management, Inc., 2016 WL 4443164, at *2 (D.N.J. August
18, 2016) (citing Harris v. Midland Credit Mgmt., Inc., 2016 WL
475349, at *1–3 (D.N.J. Feb. 8, 2016)) (where the credit card
issuer assigned the debt to a debt collector, the debt collector
was authorized invoke the arbitration provision from the
cardholder agreement to move to dismiss the plaintiff’s FDCPA
claims in favor of arbitration).
putative class action claims are subject to the arbitration
provision’s class action waiver clause.
See AT&T Mobility LLC,
563 U.S. at 348.
Thus, because Plaintiff has not demonstrated how her claims
are unsuitable for arbitration or that the arbitration agreement
is otherwise invalid, and Plaintiff has not asked that the Court
stay the matter pending arbitration, Plaintiff’s complaint must
be dismissed in favor of arbitration.
See Singh v. Uber
Technologies Inc., --- F. Supp. 3d ---, 2017 WL 396545, at *12
(D.N.J. Jan. 30, 2017) (quoting Lloyd v. Hovensa, LLC, 369 F.3d
263, 269 (3d Cir. 2004) (“The Third Circuit has held that the
plain language of § 3 of the FAA “affords a district court no
discretion to dismiss a case where one of the parties applies
for a stay pending arbitration.”
Because neither party requests
a stay of the proceedings, the Court dismisses the case in favor
An appropriate Order will be entered.
February 21, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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